Proposition 19 as Seen from Abroad

Those of you who speak German may be interested in this article on Proposition 19 in Der Spiegel.

UPDATE 6 OCTOBER 2010, also in German, here is a Swiss perspective from NZZ.

One question the foreign press often asks me is whether the passage of Proposition 19 would violate the US’s responsibilities as a signatory of UN drug control treaties. I am not 100% sure about this, but I believe the answer is no. Most UN treaties give an out to countries like Germany and the U.S. that are federated, saying that the treaty applies only to federal-level policy commitments (If an RBCer has definitive information on this, please post). It doesn’t mean that UNODC won’t lambaste the Obama Administration if Proposition 19 passes — it will and that will be a foreign policy headache — but I am pretty sure the fight would be over the spirit of the treaties rather than the letter.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

10 thoughts on “Proposition 19 as Seen from Abroad”

  1. It´s very odd that global international law is so strong in this one area. On intellectual property, the Berne convention has no similar enforcement mechanism, and it´s pretty well applied (regardless of whether you think it´s sensible). The Geneva convention on international humanitarian laws – the laws of war – there is a mechanism, but it´s weak: inspections by the non-governmental ICRC. I personally would like to see more world government, not less, in areas like climate change, shipping, war crimes and human rights, but drug control is a peculiar place to start. If the USA can no longer comply in good faith with the Single Convention, it´s not a disaster for the global rule of law if it gives notice of denouncing parts of it. The idea would be to force a renegotiation of the text round a less gung-ho war-on-drugs approach. However, the incentive of other countries to do this would be greatly reduced by the fact that for the next two years at least the Obama Administration couldn´t get through the Senate a treaty reaffirming that 2+2=4.

  2. Here's the text:

    Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

    Since the courts have held that Congress may not, by statute, require the states to carry out federal policies, perhaps it's also true that Congress cannot do so by treaty. If so, then passage of Prop. 19 would not violate international law.

    But the courts have also held (as recently as Angel v. Raich) that the federal Controlled Substances Act remains enforceable even when state laws conflict with it. So the obligation to make cultivation and sale "a punishable offense" would seem to forbid the federal government from acquiescing to Prop. 19 as it has to Prop. 215: in the case of Prop. 215, the "medical" figleaf provides legal cover.

  3. I agree with your conclusion; however, I think what we're more likely to see a huge sense of relief wash over most foreign governments. I can see them saying "Thank god!! Now we don't have to keep up this madness anymore either!" The only reason a huge number of other countries haven't already legalized is because of US intimidation.

    I'm not a lawyer. Mark Kleiman may be correct in his legal analysis; however, what he neglects to consider is that EVERYONE (including the feds) is looking for an out to the drug war. When it passes, Prop 19 provides that out. If nothing else, it says to the feds in no uncertain terms: It's time to legalize. I just don't see the feds challenging California on this.

  4. "A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare [prohibit the use of cannabis]"

    There is no compelling evidence that public health and welfare is protected by the prohibition of cannabis.

  5. Strayan, I think you need to learn to read more carefully or to quote less selectively. The passage you quote is from Article 39, titled "APPLICATION OF STRICTER NATIONAL CONTROL MEASURES THAN THOSE REQUIRED BY THIS CONVENTION." [Emphasis added.]

    Notwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be,precluded from adopting measures of control more strict or severe than those provided by this Convention and in particular from requiring that preparations in Schedule III or drugs in Schedule II be subject to all or such of the measures of control applicable to drugs in Schedule I as in its opinion is necessary or desirable for the protection of the public health or welfare.

    Article 28 requires that cannabis production, if allowed at all, be controlled as strictly as opium production (Article 23), with the government as the sole buyer, except for medical use.

  6. I think that, as a matter of constitutional reasoning, it makes no sense to presume that treaties can give the federal government powers it lacked before their passage. This would make treaties effectively the equivalent of constitutional amendments, which require state ratification.

    So, the federal government is obligated by this (rather foolish) treaty to do all that is in it's power to restrict drugs. But if the Constitution is not abusively interpreted, that's damned little. And even by current interpretation, it doesn't extend to requiring states to aid in the repression.

    So Prop 19 is not contrary to that treaty. The feds might be obligated to enforce their own drug laws, but the state doesn't have to extent to the feds the slightest assistance.

  7. Mark: Thanks. I suspect the phrase in your abstract "Subject to its constitutional limitations" is the "out" for federalist nations. That is, one signs for one's national policy, and isn't in violation if semi-autonomous lower level units set their own policy in the same area.

    James: Yes, the drug treaties are among the most prescriptive UN treaties. We dealt with this a bit in Drug Policy and the Public Good (on sale at better bookstores…) by comparing them to treaties for firearms and trade.

    Rational Voice: Some people who favor drug legalization see and describe Western Europe as "the world", from which it follows that the US is stopping "the world" from moving forward. But the colonial era is past and most of Africa, the Middle East and Asia have more restrictive approaches to drug policy than the U.S. or Europe. At the U.N., the U.S. is often the moderate negotiating for space between Western European countries and everyone else.

  8. It was an historical accident that the Single Convention treaty of New York (1961), which became the UN treaty banning "marijuana" and was later extended to cover Schedule 1 drugs was pimped by Harry Anslinger, after he was kicked upstairs to became the first UN High Commissioner of Narcotics. He was the same bureaucrat who, as chief of the FBN, sponsored the deceptive Marijuana Tax Act in 1937 on the basis of unscientific nonsense. Ironically, the Single Convention extended that ban to other agents declared illegal in 1970 on the basis of the contrived "logic" of Schedule 1

    Thus both the MTA and the CSA were passed without a shred of modern Pharmacologic evidence to support them; it's most recent update was Reefer madness circa 1937.

    Thus it's no surprise that America's (Nixon's) drug war has always been an even bigger failure than Prohibition, yet it's still International law. Hardly a ringing endorsement of the intelligence/intellectual honesty of our species…

  9. I think that, as a matter of constitutional reasoning, it makes no sense to presume that treaties can give the federal government powers it lacked before their passage.


    The case you are looking for is Reid v. Covert, which does indeed hold that.

    That said, we're screwed with respect to a Prop. 19-style approach as long as Raich remains good law.

    What is unexplored is the extent to which a state itself can go into the marijuana business. Under current Supreme Court doctrine, the executive branch has no power to force states to comply with treaties, and also has limited power under the Tenth Amendment to regulate the states' sovereign activities. So if California wanted to sell marijuana, and utilized state law enforcement officers to guard the growing facilities, I don't think the DEA would have either the legal authority nor the guts to try and shut the operation down. That's probably the only effective method of obstructing the federal government's marijuana policy at this point.

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